EU Legal Review Says ACTA Negotiators Broke The Law In Not Revealing Text To EU Parliament

from the so-sorry,-it's-secret dept

Remember back when the EU Parliament voted 663 to 13 against what was going on with ACTA negotiations? The EU negotiators, who worked for the EU Commission, not the EU Parliament, seemed to brush off Parliament's concerns. However, some in the Parliament asked their legal services to determine if the EU Commission was allowed to keep ACTA secret. While ACTA has now been released, the review still happened. Hephaestus points us to the news that the analysis found that negotiators were not allowed to keep the document secret (pdf) from Parliament, and that if it had continued to the Parliament could have taken legal action. The key points:

Confidentiality cannot be used as a justification for not complying with the obligation to keep Parliament fully informed. Where a degree of confidentiality is justified to ensure the proper conduct of negotiations, the Council and Commission may request that agreed measure on the confidentiality of the documents be applied.

The obligation to inform Parliament cannot be modified or limited by any agreement among the institutions or by an arrangement with third parties which does not involve Parliament. Where documents originate from a third party, the Union negotiator may be justified in agreeing not to disclose such information without the consent of the third party concerned. In such circumstances, Parliament should nonetheless be provided with sufficient information.

In the case of a persistent refusal to provide it with sufficient information, Parliament could initiate proceedings for illegal failure to act.

While this might all seem moot now that the document has been released, it is worth noting that the EU's chief negotiator has said that the release was a one time deal, and they won't be releasing future drafts...

They wanted to join the clique

Confidentiality cannot be used as a justification for not complying with the obligation to keep Parliament fully informed. Where a degree of confidentiality is justified to ensure the proper conduct of negotiations, the Council and Commission may request that agreed measure on the confidentiality of the documents be applied.

This is somewhat troubling to me. It essentially states: 'yes you could have kept it secret from the public, but not from us'. It almost reads as a plea for joining the clique; which if that were to happen would make the situation even more dangerous since those politicians don't really care to understand the matter.

Re: They wanted to join the clique

You might read it like that, and i am not clear on the finer points of European Governments. I always assumed Parliment was similar to senators in the US. In the US we elect (in theory) senators to represent us, they then are privy to many things we are not. Though it would seem they are just wanting to be in the clique, what they are doing is providing oversight. Could you imagine what our military and diplomatic relations would be like if every black project had to be discussed with all the citizenry?

Re: Re: They wanted to join the clique

On the military oversight: yes think about that very hard. (hint: Iraq). Also, many 'black' projects are called like that because they should not see the daylight because they are amoral and very often injustifiable. I personally believe, secrecy is not a good idea. Oversight might be, but then it should be proper oversight and be in accordance with what the population wants, not with what the industry wants.

Now, back to the ACTA crap: this is about a trade agreement; it is not something you can keep private in the end and it certainly is not something you should keep private. The fact that the EU states 'yes maybe a "degree of confidentiality" might be necessary' is bad. Who do they need to keep it secret from ? Their own population. If not that ? The Antartic population maybe ?

Re: f#ckyeah

given that pretty much everybody in europe is bitching and moaning about the eu parliament, they're doing a pretty good job here...

Actually I don't see much moaning about the parliament - most of the moaning in the UK is about the Commission - although the really anti-EU types (eg UKIP) don't like the idea of the parliament they still sit in it - and usually do a pretty good job on all the other issues.

Re: Re: Re: Re: Re: They wanted to join the clique

No - if you read the preamble it is clear that the "ACTA context" is now moot since the public disclosure. The whole opinion now refers to confidential documents in general. Unfortunately I can't quickly copy the relevant part of the pdf for you (it appears to be a scanned document) but you will find the critical words in the final two paragraphs of page 1.

I stand corrected; also something I didn't notice before is that this indeed merely specifies the 'proper procedures' to be followed before secrecy is allowed. They might have gotten a negative response.

Re:

I didn't notice before is that this indeed merely specifies the 'proper procedures' to be followed before secrecy is allowed.
Yes - that is certainly a big one - since how can the parliament agree to not knowing something without knowing it first - it's the old "Yes Minister" "Need to know" scam in a different form.

"Sir Humphrey: "Now go in there and inform me of their conversation."
Bernard Woolley: "I'm not sure I can do that, Sir Humphrey. It might be confidential."
Sir Humphrey: "Bernard, the matter at issue is the defence of the realm and the stability of the government."
Bernard Woolley: "But you only need to know things on a need to know basis."
Sir Humphrey: "I need to know everything! How else can I judge whether or not I need to know it?"
Bernard Woolley: "So that means you need to know things even when you don't need to know. You need to know them not because you need to know them, but because you need to know whether or not you need to know. And if you don't need to know you still need to know, so that you know there is no need to know"

Once again

There is a general truism in law that when an executive of an organization asks a lawyer within the very same organization to prepare a legal opinion the first question asked is "What do you want it so say?"

It is the rare lawyer in circumstances such as this who actually renders an independent and unbiased opinion. This is why, at least here in the US, courts tend to discount most such opinions.

The truly sad thing in that the hallmark of a good lawyer is the ability to provide "bad news" to a client in a way that makes the client pleased to have received such news.

While this might all seem moot now that the document has been released, it is worth noting that the EU's chief negotiator has said that the release was a one time deal, and they won't be releasing future drafts...

I think you've missed a salient point

The release occurred after the EU Parliament asked for a legal ruling. The ACTA negotiators probably read up on the legal rights of parliament and decided that releasing it before they were ordered to was the best option, and they no doubt will argue when parliament next wants an update that they've already released it, and that nothing substantive has changed so that parliament doesn't need an update.